A Lawyer’s Random Musings – Zoos

A Lawyer’s Random Musings on Intellectual Property and Other Legal Stuff, Mainly for Visual Artists and Occasionally for Other Creative People.

Question: It is my understanding that many zoos today require permits if you want to sell your work. How do I know whether a zoo will sue me if I take pictures of the animals and sell the pictures?

Answer: Below are some of what I view as best practices for zoo animal photography.

BEST PRACTICES:

1) READ THE WEBSITE: Before you go to the zoo, check the zoo’s website for a photography policy. Note that some of the rules that you (the photographer) might need to follow may be under categories that are not labelled as photography policy, so you need to look at the whole website.

2) CONTACT THE ZOO: Most of the websites have phone numbers / emails that you can use to contact the zoo and ask about photography policies. Without exception, every zoo staff person that I spoke with was very friendly and helpful. Most zoo’s public relations offices can give you a simple verbal summary of their basic photography policy – clear rules that are easy to understand and follow, but not very detailed. Many of the zoos have more detailed photography policies that they can email to you upon request.

3) KNOW, BEFORE YOU ASK, HOW YOU PLAN TO USE YOUR PHOTOS: It helps the zoo to answer your questions, and to offer to help you in ways that are genuinely helpful to you, if you have reasonably clear ideas for what you want to photograph, and how you want to use the photos.

Many zoos, sometimes for a fee, are happy to accommodate photographers who have something specific in mind. The fees usually are not exorbitant. If you do the math, you can usually see that the fees are approximately commensurate with the costs (staff time, etc.) of accommodating the photo session. Upon request, usually on a case-by-case basis, sometimes zoos will make special arrangements for photographers, such as allowing you to come in early before the zoo opens (so you can avoid crowds & other visitors), or make other arrangements to help photographers get great pics.

COPYRIGHT, TRADEMARK, and OTHER INTELLECTUAL PROPERTY (IP):
There can be trademarked or copyrighted materials, as well as other forms of IP at a zoo, on signs, maps & informational materials, food packaging or toys for sale, etc. Trademark, copyright and other IP laws apply. This is sometimes reflected in the zoos’ rules. It is common practice for zoos to trademark the name of the zoo, as well as zoo logos. Some zoos give names to individual animals – they sometimes assert trademark or copyright interests in their animals’ names (not the species name, species names are public domain).

Other entities’ trademarks or IP can be found at a zoo, as well, for example a sponsor, perhaps a car manufacturer, may have their logo displayed on signage or publicity materials for the special exhibit it helped to support.

THE RULES and THE MISSION:

Zoos are similar to other public and non-profit organizations in having particular roles in the community. They have missions to fulfil, for example: preservation of certain animal species, public education about animals, research programs, family-friendly entertainment. Zoos are not all exactly alike, there are differences between one zoo and another regarding what their exact missions may be. They often have rules requiring photographers to get zoo approval for commercial-purpose photography. Often they do not allow commercial photography that is inconsistent with the zoo’s goals or missions, or that they think will be in some way detrimental to the zoo.

It is common for zoos to restrict uses of photography that will interfere with or compete with their fundraising efforts. Zoos are expensive to run. It costs money to feed animals, provide staff to clean the cages, provide veterinary services, maintain the grounds and landscaping, provide guest information services, trash collection, staff ticket sales offices, and do all the other things that create a quality zoo experience for all the animals and people involved. Some zoos offer specialized programs, for example: preservation of endangered species, veterinary care for rescue animals, scientific research, educational programs, as well as community events. Denver Zoo’s snake population provides unusual kinds of anti-venom that saves the lives of snake-bite victims.

Zoos, even zoos that are publicly owned and partially funded by tax dollars, often struggle (as do non-profit organizations generally) to find ways to fully fund their various activities. While they usually have no problem with visitors taking & sharing pictures of animals for personal use, zoos often either do not allow, or charge fees for, commercial uses that might be viewed as diverting a potential income stream from the zoo to outside entities.

Zoos need to provide safe, clean, healthy, appealing environment for the visitors – adults, children, pets, staff, and zoo animals. Many of the rules that apply to the general public, and photographers as well, are in place for human & animal safety reasons and to ensure a quality experience for a wide range of visitors. Providing a place to photograph animals, while definitely a benefit, is not necessarily a primary objective for a zoo.

ACTUAL ZOO POLICIES:

I looked at a sampling of zoo photography policies from zoos around the country. I tried to choose either zoos that I have visited, to ensure that I have a basic understanding of what it is like to visit that zoo, or I chose a zoo that other artists/photographers have asked about.

I looked for photography policies on all of their websites. Some of the zoos post the policies on the websites, some don’t. All of them have emails/phone numbers you can use to contact the zoo. Smaller community zoos may not have formal photography policies that address use of photos. Their formal rules are more safety-oriented, they have a flexible approach that allows staff to handle issues that fall outside formal rules as appropriate on a case-by-case basis.

Below are some rules and policies from actual zoos. You can see that there is a very wide variety of approaches. The zoos tailor their photography policies, if any, to the needs of the individual zoo. You can’t assume that just because you were allowed – encouraged, even – to do something at one zoo that you will be allowed to do the same at a different zoo.

Note that I did not try to capture absolutely every rule that a zoo might have, either on its website, or elsewhere. The information presented below provides a general idea of the variations in rules that photographers might expect to encounter.

“Legally, commercial photography at the Smithsonian and Zoo is prohibited. The Smithsonian Institution is a trust instrumentality of the United States government. 20 U.S.C.A. § 41. Federal regulations governing its buildings and grounds—which include the National Zoological Park—prohibit commercial photography. 36 C.F.R. § 504.11; Security and Policies, available at https://www.si.edu/Visit/Security. For this reason, photography is only permitted for personal, non-commercial use. In addition, the name of the National Zoological Park is a trademark and cannot be used in association with the sale of goods or services without written prior permission from the Smithsonian.

Some of our animal names are protected by trademark, Bei Bei [the giant panda] for example. That means that names can’t be used to indicate the source of a product; they cannot be used as a brand-identifier such that people would think that the product is being sold by the Smithsonian and/or National Zoological Park. If a vendor is interested in selling photos, video, or other products pertaining to the Zoo and/or its collection, he/she is required to contact the Smithsonian Office of Product Development and Licensing at rightsmanager@si.edu to obtain permission. Licensing fees vary depending on the type and number of products produced.”

Source: email dated 8/30/2018 from the Smithsonian National Zoological Park

NEW ENGLAND AQUARIUM
Boston, MA

The New England Aquarium isn’t a zoo per se, it’s an aquarium, but it is a place where visitors can photograph sea animals, so here it is:

“Is photography allowed?
Yes. Tripods and stands are forbidden as they can obstruct the exhibit paths, and flash photography is restricted in certain areas as it can distress some animals. Other than that, click away! After your visit, you can share your photos with others on Facebook, Twitter, Tumblr, Google+, Instagram, and Pinterest.

“This section of our website is designed for working journalists. The park’s communications team is eager to work with members of the media. We hope you find this section of our website useful.

A ADMISSIONS POLICY
The Media Admissions policy for Busch Gardens Tampa Bay enables news media to become familiar with the park’s many featured attractions and, at the same time, enjoy a day with family or friends.
We extend tickets as a professional courtesy and consider requests on a case-by-case basis based upon news outlet and market through traditional and social channels. This courtesy is extended to active, credentialed members of the news media only, which does not include administrative personnel, promotions directors, retired journalists, sales staff or non-news management.

Complimentary admission is available to media in the following categories:
Print Media: Publishers, editors, reporters, staff writers, photographers, freelance writers and producers.
Broadcast Media: News directors, public affairs directors, assignment editors/managers, producers, on-air personnel (anchors/hosts/DJs/reporters), photographers/videographers, program directors.
Online Media: Social media influencers or bloggers are considered on a case-by-case basis if the blogger has a significant social media following and meets other criteria. Links to blog posts must be sent within seven (7) days of their visit.”

“General Rules…
• Obey all posted signs. Denver Zoo requires all guests to remain on designated pathways at all times. Climbing or crossing barriers or entering restricted areas is prohibited. Violators will be issued a criminal citation and are subject to a maximum possible penalty of up to 300 days in jail and a $999 fine pursuant to D.R.M.C. §38-115.
Prohibited Items
‘…Recreational devices such as drones, remote control toys,…’
Prohibited Activities
• The sale of goods or services or the display of goods or services for sale.
• The distribution of printed or recorded materials of any kind.
• Unauthorized events, demonstrations or speeches, or the usage of any flag, banner or sign for commercial purposes, or to incite a crowd.
• Photography, videotaping or recording of any kind for commercial purposes.
• Engaging in any unsafe act or other act that may impede the operation of the Zoo or any associated facility.
Denver Zoological Foundations Rights
• Denver Zoological Foundation may photograph, film, videotape, record or otherwise reproduce the image and/or voice of any person who enters Denver Zoo and use the same for any purpose without payment to any person.”

The Cheyenne Mountain Zoo is located near two very large military facilities, where there are a lot of young military families. It appears that the photography policy for this zoo establishes detailed rules for when wedding parties, etc., use the zoo as a photography venue.

“Cheyenne Mountain Zoo Photo Policy
To apply for photo or video shoots (commercial or personal) on Zoo grounds, please email a request at least two weeks prior to the proposed shoot to Marketing Director Jenny Koch at jkoch@cmzoo.org and include the following information: • What manner of shoot is this? o Commercial, music video, bridal/engagement portraits, senior photos, etc. o Where and how will the photos/video be used or published?
• How many people will be in your party?
• What equipment will you be bringing?
• How long do you expect your shoot to take?
Photographs and video cannot be published, sold, reproduced, transferred, distributed, or otherwise commercially exploited in any manner whatsoever without permission of Cheyenne Mountain Zoo. The Zoo reserves the right to refuse permission for any shoot that is determined to not be in the best interest of the Zoo or doesn’t appear to support our mission of being a leader in conservation, captive breeding and animal care and connecting people with wildlife and wild places through experiences that inspire action. Commercial Projects Commercial projects include, but are not limited to, any photos/video that are being sold or that use paid talent. Commercial photography and filming is permitted only with permission of Cheyenne Mountain Zoo. Complete payment for photography and videography are due prior to entering the Zoo on the pre-scheduled day of photographing or filming. A member of the marketing department must accompany you at all times. Please note we do not allow drones on Zoo grounds or in the airspace above our grounds. Note that certain equipment may not be allowed onto Zoo grounds if it is determined the equipment could disturb our animals or guests.
Commercial Photography/Filming Fees:
• Commercial photography fees start at $500
• Commercial videography fees start at $1,500
• Additional fees may be charged for special access or assistance
Personal Projects A personal shoot is defined as senior portraits, engagement/bridal portraits, pregnancy/baby portraits, and any other photos solely for personal use and not for resale. Still Photography/Portraits: • $100 for two hours (does not include Zoo admission, which is to be paid when you arrive) • If you will require more time, please contact us. Upon acceptance of your request and full advance payment, you will be issued a permit valid for the date and duration of your shoot. On that date, pay the applicable admission fees for all those in your party at the Zoo Admissions Booth, and carry the permit with you at all times. Present the permit if approached by a Zoo staff member to show that professional photography session has been approved and paid in advance. Please follow the following guidelines for personal shoots: • The shoot must take place during regular daytime Zoo admission hours, which are typically 9 a.m. to 5 p.m. Hours can vary for holidays or special events.
• The shoot must not disrupt Zoo visitors, animals or staff in any way.
• No special accommodations will be made, including golf cart access, security, food, etc.
• No animals may be handled, and participants must not cross any exhibit barriers.
• Do not disturb the Zoo landscape, which includes not climbing trees, climbing/moving rocks, stepping into garden areas, etc.

Please note that the Zoo is not responsible for any lost, stolen or damaged equipment while on Zoo property. Flash photography will be allowed on a case-by-case basis depending on the shooting area, nearby animals and any other animal welfare-related circumstances. Video and still photography will not be permitted or will be halted if it in any way disturbs our animals or disrupts guests’ experience of Zoo facilities. The Zoo has limited power and electrical access, so you will need to supply your own. All payments are non-refundable whether or not the shoot occurs. Shoots can be rescheduled due to inclement weather, with prior approval. If you have any questions or concerns not addressed, email jkoch@cmzoo.org.”

Source: Email from Cheyenne Mountain Zoo, dated 8/27/2018

MILWAUKEE COUNTY ZOO
Milwaukee, Wisconsin

This zoo is a local community zoo. I spoke with a representative on the phone. They do not have a formal written policy for photography. However, they do have safety rules – they restrict the use of tripods and flash. Flash is restricted because it hurts/bothers the animals’ eyes. They will accommodate commercial photo shoots, on a case by case basis, for a fee. Photographers have to follow safety rules, and there might be content restrictions. On a case by case basis, they may grant early morning access to photographers, so pictures can be taken without crowds of visitors getting in the way.

Source: Phone call to Milwaukee County Zoo, dated 8/28/2018.

SAN DIEGO ZOO
San Diego, CA

I did not find much directly addressing photography of zoo animals on their website. Their website mainly addresses use of website content, and this (below) listing some of their trademarks or service marks:

The San Diego Zoo, San Diego Zoo Safari Park, San Diego Zoo Institute for Conservation Research, San Diego Zoo Global, San Diego Zoo Global Wildlife Conservancy and other names of Zoological Society of San Diego programs and products are trademarks, registered trademarks, or service marks of the Zoological Society of San Diego.”
Source: http://zoo.sandiegozoo.org/visitor-info/terms-use

I spoke with a San Diego Zoo representative over the phone. He was very pleasant and helpful. To summarize, he told me that the zoo restricts any use of zoo animal photography that makes a profit. To get a written copy of the San Diego Zoo photography policy, the phone representative suggested he could either forward a request to the right person, or I could contact the zoo through their website email link. I elected to use the website contact link to request the policy, but as of press deadline I have not received any emails from the San Diego Zoo.
Source: Phone call, dated 8/29/2018

ENFORCEABILITY: This article does not address whether these, or any other zoo’s photography policies are enforceable. If there is a dispute regarding the enforceability of a specific policy, and a specific use of photography, that would be addressed by the people involved on a case by case basis. Future articles may discuss some general principles of law that might affect photographers who use public/private venues for photography.

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DISCLAIMER

Disclaimer: This column is intended to provide entertainment, and basic general information about the law. It is not legal advice. No attorney-client relationship exists or is created between the author and the reader or any other parties. This information is not a substitute for legal advice from your attorney. If you think you may need legal advice or if you are engaged in or contemplating litigation, you are encouraged to seek the services of a licensed attorney in your jurisdiction.

The author makes no attempt to protect from public disclosure any attorney-client privileged or other information provided to her. Your attorney may have a more difficult time representing you effectively if you have disclosed attorney-client privileged information, so please don’t be stupid and send to the author information that you don’t want your adversaries to know. All of the ideas, opinions, errors, random thoughts, digressions and everything else she wrote are her own, and are not to be blamed on anyone other than the author.

Copyright Cheryl Emerson Adams, all rights reserved.

For more free basic information on U.S. intellectual property law, see the following websites:
Copyright: Copyright Gov
Patent and Trademark: USPTO Gov

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